52 Ind. 110 | Ind. | 1874
Suit by the appellant against the appellee. The complaint is as follows:
“ Thomas Higgins, Jr., by his next friend, Thomas Higgins, Sr., admitted by the court on his written consent herewith filed, complains of the Jeffersonville, Madison & Indianapolis Railroad Company and says that said company was, at the time, when,” etc., “ the owner of a certain railroad known as the Jeffersonville, Madison & Indianapolis Railroad, together with the tracks, cars, locomotives and other appurtenances and fixtures thereunto belonging; that on or about the 10th day of June, 1867, the plaintiff, said Thomas Higgins, Jr., of the age of seven years and no more, while returning from school, was upon and crossing the track of the aforesaid company, on which was standing a locomotive of said company, in the charge of the employes of said company, in the usual course of their employment; that said plaintiff then and there got upon said locomotive, and while he was so upon said locomotive engine, the said employes of said company in charge as aforesaid of said locomotive, knowing or having sufficient reason and grounds to know that said plaintiff, of the age aforesaid, was upon said locomotive, carelessly neglected to remove said plaintiff from said locomotive or to cause him to leave the same, and care
The defendant demurred to the complaint for the reason that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and final judgment was rendered for the defendant. This ruling of the court is assigned as error.
The complaint fails to show, either by an averment or by the facts alleged, that there was no negligence contributing to. the injury of which the plaintiff complains. For this reason, the complaint is defective. The Pittsburgh, etc., R. R. Co. v. Vining’s Adm’r, 27 Ind. 513; The Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287; The Jeffersonville, etc., R. R. Co. v. Bowen, 40 Ind. 545; and Hathaway v. The Toledo, etc., R. W. Co., 46 Ind. 25.
The judgment is affirmed, with costs.